ALJDEC decisions subject to certification as final

09F-2227-ROC · Registrar of Contractors · 2009-09-29

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 9, 2009

APPEARANCES: Complainant appeared and testified on his own behalf; Respondent was represented by its Managing Member and Qualifying Party John Carnelia.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Kurtis Krake brings this action against Respondent JC’s Landscape, LLC[1] for failure to complete a landscaping project and failure to perform corrective work ordered by the Registrar of Contractors. Respondent does not challenge the Registrar’s Corrective Work Order.[2] Neither does Respondent contest that it is in violation of contracting law for failure to meet minimum workmanship standards and failure to comply with a Corrective Work Order (“CWO”) issued by the ROC.[3] Thus, the items for correction in the CWO are established, as well as the violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) and (A)(23). The only issue that remained for hearing was Complainant’s objection to two items in the CWO for which the ROC Inspector found that no correction was required. Complainant submitted evidence on those items. This tribunal entered the complaint file received from the Registrar of Contractors into the record,[4] along with Complainant’s Exhibits A through G (photographs). Complainant presented evidence and testimony at the hearing, including testimony from ROC Inspector Rick Oelke. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding that Respondent has violated the contracting laws and damaged Complainant, and that many items in the CWO are in need of correction. FINDINGS OF FACT 1. Respondent was the holder of a Class C-21 specialty residential contracting license (No. 111464) issued by the Registrar of Contractors (“ROC”). That license authorized Respondent to perform installation of landscaping and irrigation systems.[5] John Carnelia was the Qualifying Party on the license. Respondent is out of business and the license was cancelled in October 2008. 2. In April 2008, Respondent entered into a contract with Complainant to perform landscaping on Complainant’s property and failed to properly complete the job before going out of business. Complainant filed a complaint with the ROC and a Corrective Work Order (“CWO”) was issued, after inspection, in November 2008. The CWO identified 14 items that required correction or completion (items 1a, 2, 3, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, and 20). 3. The CWO also identified several items for which no action was required by Respondent (items 1b, 7, 16, 17, 18, and 19). At hearing, Complainant challenged the findings that no action was required for items 1b and 16. These items concern front yard damage (item 1b), for which the Inspector could not determine whether Respondent was responsible, and an ocotillo plant (item 16), for which the Inspector could not determine whether it was damaged. Complainant also raised a new item (hereinafter referred to as “item 21”) concerning workmanship on a screen wall surrounding the air conditioning unit. Respondent did not object to the addition of the new item and did not take a position on these “no action” items. 4. Respondent did not get its license reinstated and did nothing else to remedy Complainant’s problems as identified in the CWO. 5. At hearing, Respondent did not contest the CWO. 6. Complainant presented evidence at the hearing showing that Respondent damaged the front yard left of the driveway (item 1b) and is responsible for repair of that damage. Inspector Oelke observed the damage but could not determine if Respondent was responsible for it. This tribunal finds that Respondent is responsible for correction of item 1b. 7. Complainant also presented evidence sufficient to show that the ocotillo plant in item 16 is dead and should be replaced at Respondent’s expense. 8. Furthermore, Complainant submitted evidence showing that the screen wall (item 21) needs corrective work; a cap has come off as shown in Exhibit F. 9. Finally, Complainant submitted evidence concerning item 8 that it was necessary to get the sprinklers corrected by another contractor in order to preserve the grass and keep it from dying. Respondent noted at the hearing that this was the type of item that Respondent would have corrected immediately had it been in business. Complainant testified that he will submit the cost of repairing this item with his claim to the Residential Contractors’ Recovery Fund. This tribunal finds that it was reasonable for Complainant to get item 8 corrected at his own expense and seek recovery later. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[6] Further, the standard of proof at hearing is by preponderance of the evidence.[7] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[8] Complainant has met that burden. 2. The evidence shows that Respondent has performed with poor workmanship, has wrongfully harmed Complainant, and has failed to comply with a CWO. Respondent’s obligation to Complainant as a licensed contractor was to correct the problems. Respondent failed to do so and has conceded violations. 3. The evidence supports that corrective work is needed for CWO items 1a, 1b, 2, 3, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 20, and 21. 4. Current ROC records show that Respondent cancelled the license on October 7, 2008. John Carnelia testified at the hearing that the company went out of business at that time. 5. The cancellation of Respondent’s license does not preclude discipline. Pursuant to A.R.S. § 32-1154(C), cancellation of the license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to discipline the license in this matter. 6. Under the circumstances of this case, this tribunal concludes that the appropriate sanction is to revoke Respondent’s license.[9] RECOMMENDED ORDER IT IS RECOMMENDED that Class C-21 license 111464, held by JC’s Landscape, LLC. be revoked.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the order will be 40 days from the date of that certification.

Done this 29th day of September 2009.

Office of Administrative Hearings

______________________________ Eric A. Bryant Administrative Law Judge

. . .

Copies mailed this ___ day of September 2009 to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] Although the Respondent is listed in the ROC database as “J C S Landscape,” the documentation from Respondent in the complaint file shows that it is actually “JC’s Landscape.” [2] This was stated on the record by Respondent’s representative at the beginning of the hearing. [3] Id. [4] This includes correspondence and documentation filed with the Registrar of Contractors after the complaint was filed (October 16, 2008) and before the Notice of Hearing was issued. [5] See, Arizona Revised Statutes (A.R.S.) § 32-1102 and Arizona Administrative Code (A.A.C.) R4-9-103 for a description of residential license classifications. [6] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [7] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [8] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [9] Under the circumstances, a civil penalty for failure to comply with the CWO is not recommended.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826